Ex Parte Patrick

Board of Patent Appeals and Interferences

Sep 27, 2010

11049764 (B.P.A.I. Sep. 27, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
11/049,764 02/03/2005 William P. Patrick PA-085-11451-US:
67097-11
1257
54549 7590 09/28/2010
CARLSON, GASKEY & OLDS/PRATT & WHITNEY
400 WEST MAPLE ROAD
SUITE 350
BIRMINGHAM, MI 48009
EXAMINER
PHILLIPS, FORREST M
ART UNIT PAPER NUMBER
2832
MAIL DATE DELIVERY MODE
09/28/2010 PAPER
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
PTOL-90A (Rev. 04/07)

UNITED STATES PATENT AND TRADEMARK OFFICE
________________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
________________

Ex parte WILLIAM P. PATRICK
________________

Appeal 2009-004224
Application 11/049,764
Technology Center 2800
_________________

Before JOSEPH F. RUGGIERO, MARC S. HOFF, and
THOMAS S. HAHN, Administrative Patent Judges.

HAHN, Administrative Patent Judge.

DECISION ON APPEAL1

Appellant invokes our review under 35 U.S.C. § 134(a) from the
Examiner’s final rejection of claims 1 and 3-16. We have jurisdiction under
35 U.S.C. § 6(b). We affirm.

1 The two-month time period for filing an appeal or commencing a civil
action, as recited in 37 C.F.R. § 1.304, or for filing a request for rehearing,
as recited in 37 C.F.R. § 41.52, begins to run from the “MAIL DATE”
(paper delivery mode) or the “NOTIFICATION DATE” (electronic delivery
mode) shown on the PTOL-90A cover letter attached to this decision.

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Application 11/049,764

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STATEMENT OF THE CASE2
Appellant claims an acoustic liner that includes non-uniformly sized
and spatially distributed holes to thereby define a non-uniform acoustic
impedance. The acoustic liner is part of a fluid (e.g., air) handling duct for a
gas turbine and is formed with a back wall that is laterally spaced from a
face sheet having the multiple holes. The liner reflects sound in directions
prescribed by the non-uniform acoustic impedance.3 Claim 1 is illustrative:

1. A fluid handling duct for a gas turbine engine including a source of
noise,

said duct having an opening and including an acoustic liner having a
face sheet, which is perforated by a multiplicity of holes, said multiplicity of
holes being one of:

nonuniformly spacially distributed and

nonuniformly sized,

thereby defining a spatially nonuniform acoustic impedance across
said liner,

said fluid handling duct further including a backwall spaced from said
face sheet, said nonuniform acoustic impedance causing noise sound waves
to pass through said perforations after being reflected from said backwall, in
a prescribed direction relative to their location on said face sheet and as a
function of their proximity to said opening,

2 Throughout this opinion we refer for their respective details to the
Specification filed Feb. 3, 2005, Appeal Brief filed Apr. 15, 2008, and
Examiner’s Answer mailed June 25, 2008.
3 See generally Abstract; Spec. ¶¶ [0034], [0036], [0038]; Figs. 2 and 4-8.
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such that said noise sound waves reflected from said backwall
proximal to said opening, exit said opening at an angle which enhances
dissipation of said sound waves prior to intercepting the ground.
REJECTIONS
The Examiner relies on the following prior art to show
unpatentability:
Chapman US 4,298,090 Nov. 3, 1981
Hogeboom US 6,360,844 B2 Mar. 26, 2002
Wilson US 6,609,592 B2 Aug. 26, 2003
The Examiner, under 35 U.S.C. § 103(a), rejected:
1. Claims 1, 3-12, 15, and 16 as unpatentable over Wilson and
Hogeboom (Ans. 3-6);4
2. Claim 13 as unpatentable over Wilson, Hogeboom, and Chapman
(Ans. 6); and
3. Claim 14 as unpatentable over Wilson, Hogeboom, and Applicant’s
Admitted Prior Art (APA) (id.).
ISSUE
The pivotal issue, based on the Examiner’s findings and conclusions
and the Appellant’s contentions, is whether the Examiner, under § 103(a),
erred in finding that either or a combination of Wilson or Hogeboom teaches
or suggests an acoustic liner having a face sheet with non-uniformly sized

4 The statement of rejection (Ans. 3) lists claim 2 and does not list claims 15
and 16. Claim 2 was canceled by Appellant’s Amendment filed Aug. 31,
2007 and is not addressed in the statement of reasons (Ans. 3-6). Claims 15
and 16 though not listed in the statement of rejection are addressed in the
statement of reasons (Ans. 15, 16). Accordingly, we consider the listing of
claim 2 and not listing claims 15 and 16 to be harmless typographical errors.
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and spatially distributed holes to thereby define acoustic impedance as
recited claim 1.
FINDINGS OF FACT
The following Findings of Fact (FF) are shown by a
preponderance of the evidence.
1. Appellant discloses an acoustic liner 32 having a back wall 38
laterally spaced from a face sheet 32 (Abstract; Fig. 2). Holes
36 are disclosed as being perforated through the face sheet 32
so that if the holes 36 are distributed and sized in a spatially
non-uniform fashion the acoustic liner 32 will have non-
uniform acoustic impedance. This non-uniform acoustic
impedance changes over the acoustic liner 32 in relation to
changes in the areas of the holes 36, e.g., acoustic impedance
increases as face sheet 32 porosity decreases (Spec. ¶¶ [0011],
[0012], and [0034]; Figs. 4, 7).
2. Wilson discloses noise attenuation panels 15, 33 having a
backing sheet 34 laterally spaced from a facing sheet 36. The
Wilson facing sheet is perforated with a multiplicity of holes 31
(col. 6, ll. 17-20, 32-34, 60-63; Fig. 2, 3).
3. “[A]s illustrated in [Wilson] FIG. 4 holes 31 of the facing sheet
36 take the form of an array of holes having a hole size which
varies over the facing sheet 36. The hole size variation is so
chosen as to provide optimum attenuating performance of the
panel” (col. 7, ll. 10-15).

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4. Wilson further discloses that:
Liner design studies have also indicated acoustic benefit
from varying impedance properties (that is the open area)
across the facing sheet. Analysis is also showing
acoustic benefit to be gained from 3D distributed liners.
Complex variation in hole geometry and distribution
across the facing sheet is possible with the perforate
liner, lending itself therefore to a very flexible liner
design.

(Col. 9, ll. 36-42).
PRINCIPLES OF LAW
A claimed device may be recited either structurally or
functionally. However, device claims distinguish from prior art in
terms of structure rather than function. In re Schreiber, 128 F.3d
1473, 1477-78 (Fed. Cir. 1997); see also Hewlett-Packard Co. v.
Bausch & Lomb Inc., 909 F.2d 1464 1469 (Fed. Cir. 1990)
(“Apparatus claims cover what a device is, not what a device does.”
(emphasis in original)).
ANALYSIS5
Claims 1, 3, 6, 7, 10-12, and 15
Appellant separately argues independent claim 1 for this group
of claims rejected under § 103(a) as unpatentable over Wilson and
Hogeboom (Br. 4-6). We, accordingly, select independent claim 1 as
representative. See 37 C.F.R. § 41.37 (c)(1)(vii).

5 Arguments that Appellant could have made but did not make are deemed to
be waived. See 37 C.F.R. § 41.37(c)(1)(vii).
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Appellant’s arguments are directed to contentions that:
The Examiner submits that Wilson discloses a spacially
nonuniform acoustic impedance across a duct liner because
Wilson discloses in Figure 4 thereof, holes of varying size in a
turbine engine duct liner. However, there is no teaching or
suggestion in Wilson that such varying hole sizes would define
“a spacially [sic] nonuniform acoustic impedance across the
liner” as specifically set forth in Claim 1.

(Br. 4, 5). Claim 1, indeed, recites “a spatially nonuniform acoustic
impedance across said liner.” The structure recited in claim 1
includes a face sheet perforated by a multiplicity of holes that are
“nonuniformly spacially distributed and nonuniformly sized.” This
liner with non-uniform hole structure is then recited as defining a
functional spatially non-uniform acoustic impedance. We do not find
that claim 1 recites further structural limitations defining non-uniform
acoustic impedance.
We find Appellant’s argument unavailing. Instead, we find the
Examiner’s position persuasive:
The Structure as claimed is taught by Wilson, and the structure
being present necessitates that the properties of the structure be
present. Further as claim 1 and depending claims are device
claims, it is the structure that needs to be taught or suggested by
the prior art of the rejection. In this case The Structure is taught
by Wilson.

(Ans. 7.) More specifically, the Examiner finds Wilson teaches “an
acoustic liner (15 in figure 1) having a facesheet (36 in figure 4),
which is perforated by a multiplicity of holes, said multiplicity of
holes being one of nonuniformly spatially distributed and
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nonuniformly sized (see figure 4) thereby defining a spatially
nonuniform acoustic impedance across the liner” (Ans. 3). We adopt
these findings (see FF 2-4), including the finding that non-uniformly
sized and distributed holes in a face sheet define non-uniform acoustic
impedance as is recited in claim 1. Wilson teaches both the recited
structure and the claimed functional non-uniform acoustic impedance.
Wilson discloses the further functional consequence that “varying
impedance properties (that is the open area) across a facing sheet” has
“indicated acoustic benefit” (FF 4).
We are persuaded by the Examiner’s assertion that the rejected
“claims are device claims, [and] it is structure that needs to be taught
or suggested by the prior art of the rejection” (Ans. 7). Schreiber, 128
F.3d at 1477-78; see also Hewlett-Packard, 909 F.2d at 1469.
For the foregoing reasons we will sustain the rejection of
representative independent claim 1 and we will also sustain the
rejection of claims 3, 6, 7, 10-12, and 15 that are dependent from base
independent claim 1.
Claims 4 and 5
Appellant’s sole argument for these dependent claims is that
“the Wilson specification cited by the Examiner [i.e., col. 7, ll. 10-15]
is not related to variable impedance at all, but rather, noise attenuation
by Helmholtz resonators and does not disclose any increase or
decrease in impedance or noise attenuation in any particular direction
(Claim 4) or any increase in impedance with increasing distance from
the noise source (Claim 5)” (Br. 7).
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This argument does not acknowledge Appellant’s prior
assertion that Wilson discloses acoustic impedance in “a rather cryptic
reference to varying impedance properties across the facing sheet
(Column 9, lines 36-42)” (Br. 5). Citing this Wilson disclosure the
Examiner, in addressing the Appellant’s arguments that are directed to
claim 1, finds Wilson “suggests the resultant property of the varying
acoustic impedance” (Ans. 7). We have concurred with this Examiner
finding supra, because we find Wilson disclosing the functional
consequence that “varying impedance properties (that is the open
area) across a facing sheet” has “indicated acoustic benefit” (FF 4).
Addressing Appellant’s argument for claims 4 and 5, the
Examiner indicates the recited limitations “do[] not read directly on
the claimed product structures” (Ans. 8). Further, the Examiner states
that “as the holes of Wilson vary in size with distance from the noise
source the impedance would so vary” (id.). We are persuaded by the
Examiner’s findings for the reasons as are addressed supra, including
the understood finding that claims 4 and 5 do not recite further
structure limitations.
For the foregoing reasons we will sustain the rejection of claims
4 and 5.
Claims 8 and 9
Appellant collectively argues patentability for these claims that
are each directly dependent from claim 1 (Br. 7). Both of these claims
recite that the sound wave directional components in the parallel and
perpendicular directions to the face sheet are describable as having
relative magnitudes to each other.
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Appellant argues that these claims are patentable because
Hogeboom does not “disclose[] or suggest[] the relative parallel and
perpendicular components of the incident and reflected sound waves .
. .” (id.). The Examiner, inter alia, indicates that the disputed
“limitations are not directed to the product structure in th[ese]
claim[s]” (Ans. 8). As addressed supra, we are persuaded by the
Examiner’s reasoning because we also find these claims do not recite
further structure and device claims must be distinguished from prior
art in terms of structure rather than function. Schreiber, 128 F.3d at
1477-78.
For the foregoing reasons we will sustain the rejection of claims
8 and 9.
Claim 16
This claim directly depends from claim 1, and recites an
equation defining a time constant for the claimed acoustic liner.
Appellant argues that the equation defines the relationship between
impedance and the length of the liner wall to yield an increasing
shallowness in the reflected wave front (Br. 7, 8). Appellant then
posits that the “increasing shallowness approaching the duct opening
allows noise escaping therefrom to decay prior to reaching the ground,
a fundamental aspect of the invention herein and not a mere
optimization of the time constant” (Br. 8). The Examiner, inter alia,
reasons that “the structure as claimed is present and therefore so are
the properties from which the time constant results” (Ans. 8). We are
persuaded by the Examiner’s reasoning because we find that structure
exclusively is recited in base independent claim 1 and only an
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equation purported for calculating a time constant is recited in claim
16. No structure defined by any recited calculation is claimed.
For the foregoing reasons we will sustain the rejection of claim
16.
Claim 13
This claim is rejected as obvious over Wilson, Hogeboom, and
Chapman (Ans. 6). Appellant argues that Chapman fails to teach non-
uniform acoustic impedance, and, therefore, fails to cure Wilson and
Hogeboom asserted deficiencies (Br. 8). For the reasons discussed
supra, we find Wilson renders claim 1 obvious and is not deficient.
Accordingly, we will sustain the rejection of claim 13.
Claim 14
Appellant argues that that the “admission of known active
backwalls [i.e., the APA] does nothing to overcome the deficiencies
of the Wilson and Hogeboom et al. patents discussed above with
respect to the rejection of Claim 1 from which Claim 14 depends” (Br.
9). For the reasons discussed supra, we find Wilson renders claim 1
obvious and is not deficient. Accordingly, we will sustain the
rejection of claim 14.
CONCLUSION
Wilson teaches an acoustic liner having a face sheet with non-
uniformly sized and spatially distributed holes to thereby define
acoustic impedance as recited in claim 1.
ORDER
The Examiner’s decision rejecting claims 1 and 3-16 is affirmed.
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Application 11/049,764

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No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(1)(v).
AFFIRMED

KIS

CARLSON, GASKEY & OLDS/PRATT & WHITNEY
400 WEST MAPLE ROAD
SUITE 350
BIRMINGHAM, MI 48009